Lord Advocate lends backing to environmental court

Scotland’s top prosecutor has thrown his weight behind the creation of a specialist environmental court.

The Lord Advocate Frank Mulholland QC said the measure would send a “huge and powerful message” to the public of the seriousness with which this area of criminal law is taken.

The call came as officials from the Scottish Environment Protection Agency (SEPA), Police Scotland and HMRC, among others, gathered in Edinburgh for Scotland’s first environmental waste conference.

Latest estimates put the financial benefit in waste crime cases investigated last year alone at roughly £30m, while SEPA told a parliamentary committee in August that around one in five of all serious and organised crime groups have links to businesses within the waste sector.

Last June, a Borders company became the first firm in Scotland to receive a confiscation order under proceeds of crime legislation for an environmental offence. 

“A lot has been done already but we can do more,” said Mulholland. “We must keep our focus, ensure that our energy levels do not reduce, ensure that we remain up for the fight, and ensure that we develop more tools to combat this area of criminality.

“Now these are givens, but please allow me to take this opportunity to gaze into the future and muse on a number of possibilities.   

“What about an environmental court? What a powerful message that that would give. It doesn’t need to be a shiny new building with new administrators and clerks, just order the business in a particular way to give a focus on certain days to environmental crime. I think that would be very welcome and would deliver a huge and powerful message to the public.

“Secondly, what about a specialised sheriff or judge for environmental crime, say with an all-Scotland jurisdiction? Again sending out a powerful message to the public of Scotland as to where the courts’ priorities lie, where investigators and prosecutors’ priorities lie.

“What about bespoke penalties for polluters? What about a clean-up order for where the polluter is responsible for paying the cost of the restoration? Again something which, in my view, is worthy of consideration.”
 
Mulholland also raised the prospect of publicity orders in which adverts could be placed in newspapers upon conviction and sentence being reached.

Orders preventing directors of companies convicted for environmental crime becoming directors of companies doing environmental work, plus giving the courts power to withdraw licenses necessary to operate an environmental business where they are breached were also mooted. 

“Now, I appreciate these are suggestions which are worthy of consideration,” he added. “I am not a politician, it is not my job to decide what should happen going forward.

“But I throw these suggestions out there for consideration as to how to increase the risk of getting caught to make environmental breaches really unattractive.”

In 2011, the SNP made a manifesto commitment to explore the option of an environmental court in Scotland. 

Asked about the matter at a recent meeting of Holyrood’s Justice Committee, Cabinet Secretary for Justice, Michael Matheson, said: “I recognise the importance of having different specialist courts, and I am open to considering how such specialisation can be continued in the future. 

“I am also open to considering what the shape of our specialist courts should be in the future, including whether we should have an environmental tribunal or court. 

“That is not to say that it will automatically happen, but I am open minded about considering whether it would be appropriate and how it would fit within the Scottish justice system."

Delivering its Stage 1 report on the Courts Reform (Scotland) Bill earlier this year, the Justice Committee said it was “sympathetic” to calls for the introduction of an environmental tribunal for Scotland to bring Scotland fully into line with the Aarhus Convention.

The Convention establishes rights of the public to access environmental information and participate in environmental decision-making, while having the ability to challenge an environmental decision.

However, a number of environmental organisations have raised concerns that recourse to judicial review is often too expensive an option.